IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-41084
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE TREJO-GALVAN,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 28, 2002
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Felipe Trejo-Galvan pleaded guilty to one count of illegal re-
entry into the United States in violation of 8 U.S.C. § 1326. The
district court sentenced Trejo to twelve months and one day in
prison. Based on its determination that Trejo’s three prior
misdemeanor convictions for driving under the influence were
“crimes against the person,” the district court also imposed a
three-year term of supervised release under the enhanced penalty
provision in 8 U.S.C. § 1326(b)(1). The question in this case is
whether Trejo’s convictions for driving under the influence are
“crimes against the person,” thereby triggering the enhanced
penalty provision.
Because the relevant statute does not define the term “crimes
against the person” and because no other circuit court has had
occasion to interpret its meaning, we construe the term in
accordance with its accepted common law definition. Specifically,
we hold that a “crime against the person” is an offense that, by
its nature, involves a substantial risk that the offender will
intentionally employ physical force against another person.
Applying this definition to the instant case, we conclude that
driving under the influence is not a crime against the person
because it does not involve a substantial risk that the offender
will intentionally use force against another person. As a
consequence, the district court erred in imposing an enhanced term
of supervised release under § 1326(b)(1) based on Trejo’s three
prior convictions for driving under the influence. We therefore
vacate Trejo’s supervised release sentence and remand the case to
the district court for resentencing within the one-year maximum
term of supervised release authorized for a violation of § 1326(a).
I
Felipe Trejo-Galvan has been deported twice from the United
States -- once in January 1988 and again in September 2000. On
February 8, 2001, Border Patrol agents arrested Trejo at a
checkpoint on Interstate 35 just north of Laredo, Texas. Shortly
thereafter, a grand jury returned a one-count indictment alleging
that Trejo had illegally re-entered the United States after
deportation in violation of 8 U.S.C. § 1326(a). On April 19, 2001,
2
Trejo pleaded guilty to the illegal re-entry charge.
After accounting for Trejo’s acceptance of responsibility and
his criminal record, the presentence report recommended a total
offense level of ten -- which carried a sentencing range of ten to
sixteen months in prison and up to one year of supervised release.
The report also observed that the maximum term of imprisonment for
violations of § 1326(a) is two years and the maximum term of
supervised release is one year. The presentence report ultimately
recommended a sentence of fourteen months in prison followed by one
year of supervised release.
Following a brief hearing, the district court sentenced Trejo
to twelve months and one day in prison. However, the district
court found that Trejo’s three prior misdemeanor convictions for
driving under the influence were “crimes against the person.” The
district court held that these prior convictions therefore
triggered the enhanced sentencing provision in 8 U.S.C. §
1326(b)(1), which authorizes up to three years of supervised
release. The district court accordingly imposed a three-year term
of supervised release in place of the one-year term recommended by
the presentence report. This appeal followed.
II
The sole issue presented in this case is whether Trejo’s three
prior misdemeanor convictions for driving under the influence are
“crimes against the person” within the meaning of 8 U.S.C. §
1326(b)(1). The issue is one of first impression, both in our
3
circuit and in our sister circuits. To be sure, neither the
caselaw nor the legislative history of § 1326(b) offers any
guidance at all as to the meaning of the term “crimes against the
person.” The term does, however, have a particular meaning at
common law. Because there is no evidence that Congress rejected
the common law definition of the term “crimes against the person,”
we presume that Congress intended to adopt it in § 1326(b)(1).1
At common law, the term “crimes against the person” refers to
the “category of criminal offenses in which the perpetrator uses or
threatens to use force” -- for example, “murder, rape, aggravated
assault, and robbery.” Black’s Law Dictionary 379 (7th ed. 1999).
Blackstone’s Commentaries similarly limits the list of “offenses
against the persons of individuals” to murder, mayhem,2 forcible
abduction and marriage, rape, sodomy, assault, battery, wounding,
false imprisonment, and kidnaping. See 4 William Blackstone,
Commentaries on the Laws of England 205-19 (1st American ed. 1772)
1
See Taylor v. United States, 495 U.S. 575, 592 (1990) (“[A]
statutory term is generally presumed to have its common-law
meaning.”); Morissette v. United States, 342 U.S. 246, 263 (1952)
(“[W]here Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it
presumably knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind
unless otherwise instructed. In such case, absence of contrary
direction may be taken as satisfaction with widely accepted
definitions, not as a departure from them.”).
2
Blackstone defines mayhem as “the violently depriving another
of the use of such of his members, as may render him less able in
fighting.” Blackstone, supra, at 205.
4
(reprint 1992); see also 1 Bouvier’s Law Dictionary 729-30 (8th ed.
1984) (same).
These authorities indicate that, at common law, “crimes
against the person” necessarily involve the intentional use or
threat of physical force against a person. So defined, “crimes
against the person” would plainly not include Trejo’s misdemeanor
convictions for driving under the influence because the offenses
did not involve the intentional use or threat of force.3
This definition of the statutory term “crimes against the
person” is consistent with our jurisprudence construing the
statutory term “crime of violence” under 18 U.S.C. § 16(b).
Section 16 defines a “crime of violence” as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of
another, or
(b) any other offense that is a felony and
that, by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
In United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir.
3
Under both Georgia and Texas law, the crime of driving under
the influence (or driving while intoxicated) requires only that the
defendant operate a vehicle while intoxicated. See Texas Penal
Code Ann. § 49.04 (providing that a person is guilty of a
misdemeanor if she operates a motor vehicle in a public place while
intoxicated); Ga. Code Ann. § 40-6-391 (prohibiting “driv[ing] or
. . . actual physical control of any moving vehicle while: (1)
Under the influence of alcohol to the extent that it is less safe
for the person to drive . . . [or] (5) The person's alcohol
concentration is 0.08 grams or more at any time within three hours
after such driving or being in actual physical control. . . .”).
5
2001), we construed the term “crime of violence as defined in 16(b)
[to] require[] recklessness as regards the substantial likelihood
that the offender will intentionally employ force against the
person or property of another in order to effectuate the commission
of the offense.” Id. We concluded that, under this view of the
statute, a felony conviction under Texas law for driving while
intoxicated is not a “crime of violence” within the meaning of §
16(b) because “intentional force against the person or property of
another is seldom, if ever, employed to commit the offense of
felony DWI.”4 Id. at 928.
The government urges a more expansive interpretation of
“crimes against the person” based on the definition of “crime of
violence” established in the Sentencing Guidelines. Under the
Guidelines, a “crime of violence” is defined as an offense that:
(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4B1.2(a). Thus, unlike § 16(b), the Guidelines
definition of “crime of violence” focuses on the risk of physical
4
More precisely, we held that a felony conviction for driving
under the influence is not an “aggravated felony” under the
sentencing guideline for illegal re-entry after deportation. The
guidelines define “aggravated felony,” in part, as “a crime of
violence (as defined in section 16 of Title 18, but not including
a purely political offense) for which the term of imprisonment [is]
at least one year.” 8 U.S.C. § 1101(a)(43).
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injury rather than on the risk of physical force. See United
States v. Charles, __ F.3d __, No. 01-10113, 2002 WL 1764147 at *1
(5th Cir. July 31, 2002) (en banc). Because driving under the
influence involves reckless conduct that creates a serious risk of
physical injury to others, it falls within the Guidelines
definition of a “crime of violence.”5
As we observed in Chapa-Garza, 243 F.3d at 925, there is a
crucial distinction between the two definitions of “crime of
violence” described above: The Guidelines definition includes all
offenses in which the defendant’s reckless conduct creates a
serious risk of physical injury, while § 16(b) reaches only those
offenses in which the defendant is likely to use force
intentionally against another person. For the reasons that follow,
we are persuaded that the statutory definition of “crime of
violence” provides a more appropriate guidepost for defining the
term “crimes against the person” in § 1326(b)(1).
First, the Guidelines definition extends considerably beyond
the common law definition of “crimes against the person” because it
includes offenses that do not involve (and are not even likely to
involve) the intentional use or threat of force against another
person. In contrast, the definition of the term “crime of
5
See United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263-
64 (5th Cir. 2000) (holding that three misdemeanor convictions for
driving while intoxicated were “crimes of violence” under the
Sentencing Guideline applicable to illegal reentry, U.S.S.G. §
2L1.2(b)(1)(B)).
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violence” set out in § 16(b) -- that is, an offense that “involves
a substantial risk that physical force against the person or
property of another may be used in the course of committing the
offense” -- broadly tracks the common law definition of “crimes
against the person.”6 As noted earlier, we must presume that
Congress intends to adopt the established common law meaning of a
statutory term unless Congress explicitly rejects that meaning.
See Taylor v. United States, 495 U.S. 575, 592 (1990).
Second, the plain language of the phrase “crimes against the
person” connotes conduct that is intentionally directed against
another person -- which would exclude reckless conduct with the
likely effect of harming others. Here again, the definition of
“crime of violence” in § 16(b), as construed in Chapa-Garza,
provides a more suitable reference point than the Guidelines
definition because § 16(b) includes only those offenses that are
likely to involve the intentional use of force.
6
The two terms are not identical, however. Unlike the common
law definition of “crimes against the person,” the definition of
“crime of violence” under § 16(b) also includes offenses against
the “property of another.” For example, in United States v.
Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999), limited in
part by United States v. Charles, __ F.3d __, No. 01-10113 (5th
Cir. July 31, 2002) (en banc), this court held that unauthorized
use of a motor vehicle is a “crime of violence” within the meaning
of § 16(b). We reasoned that unauthorized use of a vehicle
involves “a substantial risk that property might be damaged or
destroyed in the commission of the offense.” Id. (emphasis added).
Of course, the holding in Galvan-Rodriguez does not inform our
decision here because a conviction for driving under the influence
does not commonly involve the use of force against the vehicle in
order to gain access to it. See Chapa-Garza, 243 F.3d at 928.
8
In sum, we conclude that the term “crimes against the person”
should be construed in accordance with its accepted common law
meaning to include only those offenses that, by their nature, are
likely to involve the intentional use or threat of physical force
against another person. Under this definition, Trejo’s misdemeanor
convictions for driving under the influence are not “crimes against
the person.” See Chapa-Garza, 243 F.3d at 927-28; cf. Solem v.
Helm, 463 U.S. 277, 280 (1983) (noting that, for purposes of Eighth
Amendment proportionality review, a “third-offense driving while
intoxicated” is not “a crime against a person”). Consequently,
Trejo is not eligible for an enhanced sentence of supervised
release under § 1326(b)(1).
III
Because Trejo’s three misdemeanor convictions for driving
under the influence were not “crimes against the person” under §
1326(b)(1), the district court erred in sentencing Trejo to a term
of supervised release in excess of the maximum term authorized for
a conviction under § 1326(a). Accordingly, we VACATE Trejo’s
three-year term of supervised release and remand the case to the
district court for resentencing in a manner not inconsistent with
this opinion.
VACATED and REMANDED.
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